31

Berry looked at me.

“When you and I,” he said, “were members of Harrow School, we were more fortunate than we knew, for we came in for the very last years of the masters of the old school.”

“What exactly d’you mean?” said Daphne.

“Well, when Boy and I were there, at least twelve of the masters had been born before the year 1850 and three of those had been born before 1840. So they may fairly be said to have belonged to the old school. All were men of letters, and their methods and their manners were incomparable. They showed no signs of age: their brains were clear: their eyes were not dim nor their natural force abated. All their lives they had applied themselves unto wisdom, so that, young and careless as we were, we could not help learning of them and picking up some of the crumbs that fell from their handsome tables. One or two of the younger men – notably N K Stephen – maintained the great tradition; but as a rule, when they died or retired, they were found to be irreplaceable. Now all those great leases expired while we were yet at Harrow or very soon after we left: so, as I said to begin with, we were very fortunate.

“What made me remember them was an absurd occasion when I was ‘up to’ Jack Stogdon, that is to say, I was due to receive instruction at his hands. ‘Jack’ was an institution. He was very quiet and gentle, seemed unaware of what was going on, yet never missed anything. When he was afoot, his eyes seemed always to be upon the ground; yet never in his life, when a passing boy touched his hat to him, did he fail to touch his mortar-board in return. It was always said that he used to salute such lamp-posts as he passed in this way. One of the new masters who arrived just before I left apparently considered it beneath his dignity to touch his cap in return and never did so. You may imagine the contempt with which such a breach of good manners was received.

“Well, when I was in ‘Jack’s’ form – the First Fifth, I think – once a week he used to teach us English History. And the way he went about it was this. He would talk to us about some great matter, such as, for instance, the rise and fall of Cardinal Wolsey, in a friendly, informal way, inviting questions as he went. And we were supposed to take notes of what he said. During the following week we were required to write out, in the form of an essay, what he had told us. This, in our note-books. He never examined our efforts, but the next time he took us in History, he would pick two of us at random and desire us to read our essays aloud, before he began his new talk. As there were about twenty-five of us in his form, once you’d been picked, the probability was that you wouldn’t be picked again that term, and any way we didn’t bother very much, but trusted to luck. On this particular occasion, I’d forgotten all about the essay until the night before, and when I looked at my notes, they told me nothing at all. Boy was in the Second Fifth, so he couldn’t help. Still, I did remember the subject, which was Mary, Queen of Scots, and, since the only history book I could find was Gilbert à Beckett’s Comic History of England, in desperation I copied out some extracts from that and hoped for the best.

“The next morning, of course, ‘Jack’ picked me at once…”

“I can still hear the roars of laughter from the rest of the form, as I read out Gilbert à Beckett’s ridiculous sentences. But ‘Jack’ declined to be amused and fairly put it across me, as, of course, I deserved.

“But worse was to come. When he’d finished with me, he called upon Guy Ridley, a most entertaining fellow and a younger son of the Judge. Now Ridley was not only entertaining, but he was enterprising and bold. Since ‘Jack’ had called upon him only the week before, he hadn’t troubled to write an essay at all: but that didn’t daunt him. To our unspeakable delight, he rose in his place and, holding his note-book before him, endeavoured to make a speech – upon what he remembered of Mary, Queen of Scots. As he progressed, frowning upon a manuscript which was not there, we were ready to die of laughter which we dared not express. Ridley got through about three sentences. Then he began to hesitate.

“‘What’s the matter?’ said ‘Jack’. ‘Can’t you read your own writing?’

“‘Not very well, sir,’ said Ridley. ‘I’m afraid I wrote it rather hastily.’

“‘Let me see if I can read it,’ said ‘Jack’, beginning to understand.

“So Ridley took the book up…

“‘Jack’ really was cross by now and fairly let Ridley have it. Happily the next fellow he picked put up a respectable show. But he was much put out, and Ridley and I, who had afforded our fellows entertainment of a high order, had our tails between our legs.” Berry looked at me. “From the foolish grin on your face, I suppose you remember something worse.”

“I remember a disaster,” I said, “which occurred in the Upper Sixth. That was taken by Hallam, the grammarian. He was a corker and worked us terribly hard. I’m thankful to say I spent only two terms with him. Then I passed on into the still waters of ‘The Twelve’.”

“Where you did no work at all.”

“Well, we went as we pleased – more or less. If we liked writing Greek Verses, we were encouraged to write them. It was a kind of sanctuary. And now let’s get back to the Upper Sixth.

“Once a week, Wood, the Headmaster, used to take that form. And with him, we always read Homer. At the end of the hour he’d say what passage he wished us to prepare for the following week. And when the time came, each of us rose in order and translated aloud ten lines. Well, that was easy enough. Say I was tenth in the form, I was prepared to translate from line 90 to line 100 or thereabouts. But no more. You see, he always took us in order: so you couldn’t go wrong. And then one terrible day, the second boy in the form had fallen suddenly sick. And the first thing we knew of his sickness was when he failed to appear…

“You may imagine the result. When Number Three broke down, Wood looked at him very hard, just said ‘Sit down’ and put on Number Four. When Number Four broke down, Wood never even said ‘Sit down’, but called upon Number Five. When Number Five broke down, Wood sat back in his chair.

“‘Has anyone here,’ he said, ‘learned more than his ten lines?’

“There was a dreadful silence.

“‘I see,’ said Wood, coldly. ‘In that case, you’d better listen to me while I translate the passage which you were asked to prepare.’

“With that, he rendered some two hundred and fifty lines of The Iliad in the most beautiful English.

“When he had finished, he closed his Homer and rose.

“‘We’ll go on from there next time,’ he said.

“His failure to punish or even upbraid us hit us much harder than could have any penalty: and every one of us had prepared the whole passage next time. But Wood was a great gentleman. When the time came, he put us on to translate in just the same order as before. First, Number One, then Number Two, and so on.”

“Superb,” said Berry.

“The old school,” said I. “Can anyone wonder that we found him worshipful?”

There was a little silence.

Then Berry let out a squeal.

“My God,” said Daphne. “Darling, must you do that?”

“Sorry, my sweet. But I have at last remembered what I have been trying to remember for more than a month. I’ve remembered it in Boy’s absence again and again. But never in his presence, which, however undesirable, is in this case necessary. Of course my memory today is too awful. I rang up Coates at the Embassy the other day, and when he came through, I couldn’t remember his name. I’d just asked for him, too.”

“Whatever did you do?” said Jonah.

“Told him,” said Berry. “I couldn’t keep on saying ‘you’. He was very nice about it.”

“The things you get away with,” I said. “Well, what is it you want to ask me? Or have you forgotten again?”

There was an agonized silence, while Berry clasped his head in his hands.

Then –

“It had gone,” he said. “I only just got it back. I tell you, my memory today—”

“ Look here,” I said, “you’ll forget it again in a minute. Why don’t you say what it is?”

“I want to throw back,” said Berry. “You remember that death-bed Will case Coles Willing took you to hear?”

“Vividly,” I said.

“Well, we were all agreed that, if justice had been done the executors of the new Will would have gone to jail. Now if criminal proceedings had been instituted, what would they have been charged with?”

“With forgery of a Will.”

“Forgery?”

“Yes. If the nurses were to be believed, the testatrix was as good as unconscious when, by the solicitor’s orders, the pen was held into her hand and her signature was affixed. In such circumstances it could clearly have been maintained that that was ‘the false making of a Will of a living person’, and that is forgery.”

“The Law is very jealous of Wills?”

“Of all to do with them. At least, it used to be. Some Judge once said, ‘The testator must be allowed the utmost eccentricity.’ By which, of course, he meant that however eccentric the directions, they must be observed. And anyone who is convicted of forging a Will or of destroying or even concealing a Will may be sent to penal servitude for life.”

“I never knew that,” said Berry. “Does the same apply to a Codicil?”

“Oh, yes. To any testamentary instrument. The Law very properly regards them as sacred things. After all, they are the spokesmen of the dead.” I hesitated. “For all that, signed and attested as they may be, not all of them come to be proved.”

“What ever do you mean?” said Daphne.

“This,” said I. “Within a few hours of the testator’s death, many an unwelcome Codicil has disappeared. Unless it has been properly drawn by a firm of solicitors, there is very little risk. And even then, who is to say that the testator didn’t change his mind and destroy it himself?”

“Adela Leith did it, in Period Stuff.”

“I know,” I said, laughing. “She could have been sent to penal servitude for life. And there you are. Who was to know? The thing was too easy. A Will made in an hotel more than a year before, witnessed by the porter and a floor-waiter, and no solicitors employed. Nobody knew of its existence. You can’t be surprised that the Law does its best to protect such very vulnerable things. And don’t forget that the temptation is terrific. Take this imaginary case. A woman is the dutiful wife of a susceptible man. After a long illness, he dies. Going through his papers, she finds a recent, home-made Codicil, by which he has devised half his fortune to his designing young nurse. If you were the widow, what would you do?”

“Shove it in the fire,” said Berry. “Without the slightest compunction. I should lock the door first, of course.”

“Well, there you are. Penalties or no, the only safe place for a testamentary document is the strong-room of a solicitor.”

Berry looked round.

“This book,” he said, “will make some people think, won’t it?”

“It may,” I said.

“How many letters did you get after As Berry and I Were Saying about Trustees?”

“Quite a lot,” I said. “But no one went empty away. I don’t say that all were content. One or two of the younger generation, who wanted to blue their substance, seemed to think they were on a good thing. I was rather severe with them. But the responsible people who wrote to me, seemed to be satisfied with my replies. Once or twice I had to point out that we had not written a text-book, but that if they submitted their case to the Court of Chancery, what did they think that such a Court would say. To that, they had no answer. You were on very good ground.”

“But, darling,” said Daphne, “you don’t suggest that Wills and Codicils are often destroyed?”

“Good lord, no. I should think it’s extremely rare. But that such things have been done, I have no doubt.”

“I feel,” said Berry, “that Her Grace the Duchess of Whelp would have put it higher than that.”

“She was very outspoken,” I said.

“She knew her world,” said Berry. “Humanum est errare – don’t forget that. Inclination and Opportunity are a tempting pair; but when they are reinforced by Impunity – well, such a coalition is formidable indeed.”

“That’s very true.”

“Darling,” said Jill, “what is a home-made Will?”

“I gave it that name, my sweet. I meant a Will that has not been drawn by a solicitor. Any fool can draw a Will, if it’s a simple one. It’s only got to be signed by the Testator in the presence of two witnesses who must append their signatures. I think I’m right in saying that a Will consisting of the words ‘All to my wife’, duly signed and attested, has been admitted to probate. So long as its meaning is clear, the traditional phraseology may be omitted. Mark you, I don’t recommend this. It’s much better to write down what you want done and give it to a solicitor, who will then put your wishes into the shape and form in which they should be presented. You’ve no idea how easy it is for a layman to write down something which seems to him quite clear, which is in fact ambiguous. More than one very great lawyer has drawn his own Will and, when he has died, the construction of that Will has presented so much difficulty that the ruling of the Court has had to be sought before it could be proved. But over and over again in an emergency, the home-made Will has, so to speak, saved the game.”

“How astonishing,” said my sister, “that an eminent lawyer should have gone wrong.”

“Yes, it is very strange. I believe I’m right in saying that the first Viscount Esher was one of the culprits. And he was the Master of the Rolls. I may be wrong, but it was either he or one of his predecessors. I think it was Esher – a most distinguished lawyer. He spent nearly sixty years at the Bar and on the Bench and only retired a few years before my acquaintance with the Law Courts began.

“Which reminds me that among the letters I got after the publication of As Berry and I Were Saying was a very civil one from a reader, venturing to deplore the words I had used of one of the Judges of my time. I had said, ‘Such men are not bred today.’”

“Nor they are,” said Berry.

“Well, that was all right. But he added that that was an unfair reflection upon the present Lord Chief Justice, Lord Goddard.”

“How could it be?” said Jonah.

I shrugged my shoulders.

“Well, I’ve always had a great respect for Lord Goddard – or Rayner Goddard, as I remember him. And from all I hear and read – for I’ve never seen him on the Bench – he’s a first-rate Lord Chief and fully maintains the traditions of his high office. So I wrote to the fellow at once, pointing out that, as Lord Goddard was seventy-four years old when I wrote those words, to construe them as a reflection upon his lordship was fantastic.”

“So it was,” said Jonah.

I sighed.

“Letters like that show that, careful as an author may be, he never knows when something he’s written is going to be mis-read or misconstrued or misinterpreted.”

“Have you been corrected lately?”

“Once or twice. One fellow wrote and said that if I presumed to write books, I ought to know better than to write ‘receipt’ when I meant ‘recipe’.”

“I trust,” said Berry, “that you wiped the floor with him.”

“No, I didn’t do that. I simply said that I wrote ‘receipt’, because I happened to prefer that to ‘recipe’, but that in fact either word was as good as the other.”

“I know some people say ‘recipe’,” said Jill, “but I shouldn’t know how to spell it.”

“It’s Latin, my darling. And it means, ‘Take’. In the old days doctors always used to write their prescriptions in Latin and their prescriptions always began with the direction, ‘Recipe’, that is to say, ‘Take’. Take two grains of calomel etc. And so prescriptions came to be called ‘recipes’.”

“A slovenly derivation,” said Berry. “‘Receipt’ is the better form. And now that the word ‘prescription’ has displaced ‘recipe’, the latter should be retired. Have you got any more like that?”

“Not very many. ‘Different to’ is always cropping up – I mean, objections to that usage. Oh, one fellow wrote, saying that the ‘shoot’ in Blind Corner should have been spelt ‘chute’.”

“What did you say to him?”

I can’t remember. I think I said I preferred using English to French. But they mean no wrong, you know, and it shows that they take an interest.”

“Do they ever apologize? After you’ve written, I mean.”

“Sometimes. And handsomely, too. But the worst offenders don’t.”

“Years ago,” said Berry, “I read a book by a well-known novelist, which centred round an action for slander. I mean, that was the book – the slander, the preparation of the case, and finally the hearing in the Law Courts. And the plaintiff won her action. The slander was uttered at a sherry-party by one society girl of another. Very well and good. I’ve no doubt a lot of people enjoyed the book. And now for the slander. To the best of my recollection one girl said of the other that she was ‘a little snob’. Is that a slander, Boy?”

I shook my head.

“The matter would never have got past the Master. He would have struck out the action. De minimis non curat Lex is a time-honoured saying. ‘The Law does not concern itself with trifles.’ It’s not a slander to call somebody else a snob. Good God, if to say someone was a snob was to court an action for slander, everybody would be afraid to open his mouth. But I don’t suppose that occurred to most people who read the book.”

“All wrong,” said Berry. “At least, I think it is. An author of standing has a responsibility to his public. I know that’s your outlook.”

“Yes,” I said, “it is. So far as facts are concerned, one must be accurate: and where fiction is concerned, one must be reasonable. At least, that’s my idea.”

“Have you ever deliberately falsified the facts?”

“What a question!” said Daphne.

“I did once,” I said, laughing. “I hoped it would be considered that I was availing myself of what I think is called ‘an author’s licence’. In Berry and Co. I brought on the action of Pleydell against Bladder very much more quickly than it could have come to be heard.”

“That,” said Berry, “was excusable. To have put off the case for six months would have thrown the whole book out of gear.”

“I agree. I couldn’t have done it. The chapter would have had to go.”

“What is a slander?” said Berry. “And what is not? Can’t you give us an answer that we can all understand?”

“Well, before I try to answer, let me say this. I’m speaking, as they say, off the record. It’s more than forty years since I was at the Bar and to lay down the law of slander is beyond my power. But few of us have access to textbooks and I can give the general idea with more or less accuracy. Only, I don’t want somebody to read this and then, when they get a writ, to write to me and say, ‘This is all your fault.’”

“Proceed,” said Berry.

“Well, I can say this – that for an action to lie, the statement complained of must be grave. In the book we were discussing, if the defendant had declared that the plaintiff was a drunkard, that would have been slanderous. I think the line must be drawn by common sense. Supposing a fellow says of a grocer in town, ‘Don’t you deal with —. He gives short measure,’ that is a slander: but if he buys that grocer’s car and says later, ‘You know — swindled me over that car’, that is not slander.”

“Oh, I give up,” said Daphne.

“I’m sorry, my sweet. The distinction is very difficult to define. But I’m sure you can see that if you could be run for slander if you said that so-and-so was a snob, or lived for food, or didn’t know how to treat servants, or was mutton dressed lamb – well, life wouldn’t be worth living, would it?”

“Not for my sex,” said Daphne.

“Bear with me,” said Berry. “Supposing you said of a bloke that he ‘lifted his elbow’?”

“That would depend on whether he had a profession and, if so, what it was. If you said it of a butcher, it would not be slanderous: but if you said it of a surgeon, it would.

“Then again no action will lie if the words complained of are what is called ‘vulgar abuse’. That you can understand. If A backs into B’s new car and does fifty pounds’ worth of damage, as like as not the shortcomings which B attributes to A in the presence of several bystanders will be unprintable. But that is not slander. Whether or no a statement is slanderous very often depends upon the circumstances of the case. If somebody said of a bachelor member of the Bar that he took out a different girl every night of his life, that might not be true, but it wouldn’t be slanderous: but if the same statement was made of a clergyman who was married, it would. For obvious reasons, of course. Finally, to return to our starting point, when you consider the truly slanderous statements of which what is called ‘gossip’ is very largely composed, you will appreciate why an action brought by a girl because someone called her ‘a snob’ could never have got as far as a Queen’s Bench Judge.”

“Well, thank you very much,” said Berry. “I can’t say I’m very much wiser, but I do see the points you’ve made. I take it that such cases are rare.”

“Very rare. For one thing the tale-bearer is usually most reluctant to come to Court. And a reluctant witness is no damned good. They’ll always break down in cross-examination, even if they come up to their proof. Libel, of course, is a very different matter. If it’s printed, as it usually is, it’s far more serious and the printed word speaks for itself.”

“When,” said Jill, “you say ‘come up to their proof’, what do you mean?”

“Well, in the brief which is sent to counsel, there are copies of the statements which the witnesses he is to call have made to the solicitors. Such statements are called ‘proofs’. Sometimes, when a witness is in the box, he declines to go as far as he did in the privacy of the solicitor’s office. Well, that can be very awkward for the counsel concerned. And if the witness actually goes back on his proof, then counsel can hand the proof to the Judge and ask his permission to treat the witness as what is called ‘a hostile witness’. And if the Judge gives his consent, he can cross-examine him, just as if he’d been called by the other side. I’ve known it done. But it’s never any good. If a witness lets you down, you must let him go. At least, that’s my opinion.”

“Is that your last word?” said Berry.

I nodded.

“Then I’ll take over.” He sat back and closed his eyes. “Speaking,” he declared, “as one whose portion has been unbridled slander for many years, who, of natural love and affection, has always refrained from seeking redress from the Courts, I trust – though without much confidence – that you four will now reconsider the propriety of subjecting your elder and better—”

The remainder of the period was not unnaturally lost, and, when order had been restored, we went to bed.